EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

07.02.10

Freedom Defenders Look at the Glass Half Full in the Bilski Aftermath

Posted in Free/Libre Software, IBM, Law, Patents at 9:17 am by Dr. Roy Schestowitz

John Paul Stevens, SCOTUS photo - portrait
John Paul Stevens retires at the age of 90 as the Bilski decision comes out

Summary: A look at the (mostly) positive analyses resulting from the ruling where Stevens was unable to convince a majority of his peers to pull the plug on software patents

THIS is probably our last post that summarises responses to the decision from SCOTUS.

Our goal is to inform readers of interpretations that relevant groups have shared regarding the Bilski case, so it’s more of an overview that encourages to read further into the references. As I started before, IANAL (I am not a lawyer), so I will make no attempt to interpret the document myself and insinuate that my verdict is an informed one. Others who are not lawyers/paralegal researchers do attempt to do just that and they drown out the signal.

“The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling.”Major publications like the New York Times and Washington Post have both covered this ruling [1, 2], which threw out the patent of Bernard Bilski (that is probably the only fact we know for sure).

The explanations and reasoning from the SCOTUS can be interpreted in all sorts of ways because there is a lot of ambiguity and not all judges subscribe to the same portions of the ruling. In fact, the decision was a very close one and there was a 4-to-5 vote at end.

Pogson offers some reflections on Bilski. He is a Free software proponent and not a lawyer but a teacher and engineer.

The only way this issue can be settled promptly now is by legislation. M$ and its buddies will be lobbying fiercely to have the patent laws explicitly accept software. Unfortunately for them, all software, except perhaps in a controller where the software cannot possibly have multiple uses, is abstract. That is to say, programmes written in a high-level language do not even deal with bits let alone reality. They deal in variables and data-structures, abstractions in themselves. If the legislators allow software patents, they will have to allow patents on abstractions, something they will not do or cannot. That would throw our thoughts and all freedom under the bus. Indeed, one brief they did not reference was about freedom of speech as software. Patents cannot be allowed to restrict freedom of speech.

Michael Barclay, a lawyer, wrote for the EFF that “The Supreme Court Declines to Prohibit Business Method Patents” (his chosen headline). APRIL, a French advocacy group for Free software wrote about this too and here is the summary from its statement which it titled “Bilski case: the United States starts to clean the software patents minefield”

The US Supreme Court has issued on Monday a ruling that many people had been waiting for in the so-called “Bilski” case1, regarding a patent on a business method. This decision, even though it does not exclude every software from patentability, invalidates a majority of them, including those patents on computer implemented intellectual methods. It is now time for European lawmakers to halt software patents’ proliferation in Europe.

The FSF’s Peter Brown looks at/accentuates the positives:

Bilski gave us a wonderful opportunity to increase awareness to the harm caused by software patents. More scholars, more developers, more journalists, more politicians, and more patent attorneys than ever before have heard from our community on this issue. What’s next?

So again we see an example of the FSF being positive, not negative. It is mostly constructive in its approach, contrary to claims from those who wish to daemonise the FSF. Yesterday we summarised some opinions from the SFLC's Professor Dan Ravicher. There is also a new summary at Groklaw, focusing on Stevens (whose role Ravicher did not particularly like because of cynicism). Pamela Jones argued about Stevens:

He’s actually read and absorbed James Bessen’s book Patent Failure and he comprehends the dangers and the costs that such patents present. Thank you, Jim Bessen (and co-authors Mike Meurer, Eric Maskin and Bob Hunt), for all your careful and helpful work, educating judges and lawyers to the dangers of software patents. Significantly, Stevens is joined by Justices Ginsburg, Breyer and Sotomayor. Even Justice Scalia, in a separate concurring opinion written by Justice Breyer, agreed that business methods should not be granted patents. That’s five Supreme Court judges. As Tom Goldstein of SCOTUSblog points out in his analysis of the Bilski opinion, that means that business methods patents survived by a single vote. And even at that, the opinion stated that few such methods should be granted a patent.

Here is another decent analysis from a legal blog. It’s outlined as follows: [via Digital Majority]

Sifting through the clues to patentability: Four take-home points from Bilski’s mixed bag

[...]

1) State Street Bank’s “useful, concrete, and tangible result” test is dead.

[...]

2) Abstract ideas likely include “basic concepts” and methods that can be reduced to a mathematical formula.

[...]

3) Parker v. Flook’s “field of use” and “postsolution activity” limitations are alive and well.

[...]

4) Expect more Section 101 challenges, especially at the early stages of patent litigation.

Rob Tiller from Red Hat (he too is a lawyer) wrote about this decision in a rush (Red Hat worked vigourously to eliminate software patents, unlike IBM).

Dana Blankenhorn correctly points out that Florian Müller is unfairly singling out IBM, as though IBM was the sole proponent of software patents.

Given the failure of the Bilski case to change the status quo regarding software and business method patents, the search is on for scapegoats, for weak sisters in the anti-patent fight who can be made open to criticism.

It is similar to what happens after a losing political campaign. Those most committed to the cause argue that it’s weak supporters, those willing to do business under the given circumstances, who are responsible for their political failure.

So it is that Florian Mueller of Fosspatents has seized upon IBM.

We have grown increasingly suspicious of Müller. He keeps trying to find ‘enemies’ other than Microsoft and then incite the “FOSS” crowd (as in “FOSSPatents” @ Blogspot) against that imaginary boogeyman. IBM is a favoured choice for a scapegoat due to its size, regardless of its many contributions to “FOSS”, which are very much appreciated. As one commenter puts it in Blankenhorn’s blog, “Now, I understand what Free Software is (as in Richard Stallman’s stance), and I understand what Open Source is (as in Eric Raymond’s stance). And isn’t the definition of FOSS is the union of Free Software and Open Source Software – i.e., F/OSS.

“Dana – what do you mean by FOSS? Are you confusing FOSS with Open Source?”

Florian defended proprietary software in Techrights comments; he is not a proponent of the “F” in FOSS, as even his lobby with MySQL helped to show. In many new posts about “interoperability” as the theme in the headlines (the word “interoperability” is used to dodge open standards), Müller continues to sing the same tune this week. About an hour ago he mailed me to incite against Apple at Microsoft’s expense. Typical. In his blog he currently promotes action and regulation against Microsoft adversaries.

As the old saying goes, Müller “has got some ‘splaining to do”. Only a mule would not change its stance when new information arrives and given what we have shown him about Microsoft, he continues to ignore Microsoft’s negative effects on “FOSS” (especially the “F”, which means freedom).

As the Bilski hype draws to a close, some go further and ask themselves about the impact as far as biotech patents are concerned (think Monsanto).

A Supreme Court ruling June 28 on idea patents disappointed those hoping for an overhaul of intellectual property claims for software, but it may inspire new patent tests aimed at the legally troublesome biotechnology field.

According to the court, the widely followed “machine-or-transformation” test — which limits patents to machines designed for a specific purpose, or processes that physically transform an object — is outdated. This test is also at the heart of at least two other legal cases currently being contested that could shape the future of the biotech business.

Patents on life? Why not? It’s good for lawyers. Apparently life counts as an “invention” now (if genes are perturbed in scarcely or totally misunderstood ways) to yield seemingly-desirable traits. Just ignore the side effects, much like in the patent system.

Glass filled

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 24/2/2017: Ubuntu 17.04 Beta, OpenBSD Foundation Nets $573,000 in Donations

    Links for the day



  2. IAM, Greased up by the EPO, Continues Lobbying by Shaming Tactics for the UPC, Under the Guise of 'News'

    The shrill and well-paid writers of IAM are still at it, promoting the Unitary Patent (UPC) at every opportunity and every turn



  3. Patent Scope Gone Awry: European Vegetable Patents Office?

    In its misguided race to raise so-called 'production', the EPO lost sight of its original goals and now facilitates patent royalty payments/taxation for naturally-recurring items of nature



  4. Yes, There is Definitely Brain Drain (Experience Deficit) at the European Patent Office and Stakeholders Feel It

    The direction that the European Patent Office has taken under Battistelli undoes many decades (almost half a century) of reputation-building and progress and naturally this repels existing staff, not to mention hampers recruitment efforts



  5. The Sickness of the EPO – Part IV: Cruel Management That Deliberately Attacks the Sick and the Weak

    The dysphoric reality at the European Patent Office, which is becoming like a large cell (with bolted-down windows) where people are controlled by fear and scapegoats are selected to perpetuate this atmosphere of terror and maintain demand (or workload) for the Investigative Stasi



  6. Links 23/2/2017: Qt 5.9 Alpha, First SHA1 Collision

    Links for the day



  7. UPC Roundup: War on the Appeal Boards, British Motion Against the UPC, Fröhlinger Recalled, and Fake News About Spain

    Taking stock of some of the latest attempts to shove the Unitary Patent (UPC) down Europe's throat, courtesy of Team Battistelli and Team UPC



  8. The Sickness of the EPO – Part III: Invalidity and Suicides

    An explanation of what drives a lot of EPO veterans to depression and sometimes even suicide



  9. The Appeal Board (PTAB) and Federal Circuit (CAFC) Maintain Good Pace of Patent Elimination Where Scope Was Exceeded

    The Court of Appeals for the Federal Circuit (CAFC) continues to accept about 4 out of 5 decisions of the Patent Trial and Appeal Board (PTAB) and the US Supreme Court (SCOTUS) refuses to intervene



  10. Software Patents Are Ebbing Away, But the “Swamp” Fights Back and Hijacks the Word “Fix”

    The club of patent maximalists, or those who profit from excess prosecution and legal chaos, isn't liking what has happened in the United States and it wants everything reversed



  11. Report From Yesterday's Debate About the European Patent Office (EPO) at the Bavarian Landtag

    A report of the EPO debate which took place at the Bavarian Landtag yesterday (21/2/2017)



  12. Links 22/2/2017: Wine-Staging 2.2, Nautilus 3.24

    Links for the day



  13. French Politician Richard Yung Tells the Government About Abuses at the European Patent Office (EPO)

    The subject of EPO scandals has once again landed in French politics, just a couple of months since it last happened



  14. The Sickness of the EPO – Part II: Background Information and Insights

    With a privatised, in-house (sometimes outsourced and for-profit) force for surveillance, policing, justice, public relations and now medical assessment (mere vassals or marionettes of the management) the EPO serves to show that it has become indistinguishable from North Korea, where the Supreme Leader gets to control every single aspect (absolutely no separation of powers)



  15. EPO Cartoon/Caricature by KrewinkelKrijst

    A new rendition by Dutch cartoonist and illustrator KrewinkelKrijst



  16. Inverting Narratives: IAM 'Magazine' Paints Massive Patent Bully Microsoft (Preying on the Weak) as a Defender of the Powerless

    Selective coverage and deliberate misinterpretation of Microsoft's tactics (patent settlement under threat, disguised as "pre-installation of some of the US company’s software products") as seen in IAM almost every week these days



  17. The Sickness of the EPO – Part I: Motivation for New Series of Articles

    An introduction or prelude to a long series of upcoming posts, whose purpose is to show governance by coercion, pressure, retribution and tribalism rather than professional relationship between human beings at the European Patent Office (EPO)



  18. Insensitivity at the EPO’s Management – Part VII: EPO Hypocrisy on Cancer and Lack of Feedback to and From ECPC

    The European Cancer Patient Coalition (ECPC), which calls itself "the largest European cancer patients' umbrella organisation," fails to fulfill its duties, says a source of ours, and the EPO makes things even worse



  19. Links 21/2/2017: KDE Plasma 5.9.2 in Chakra GNU/Linux, pfSense 2.3.3

    Links for the day



  20. EPO Caricature: Battistelli's Wall

    Battistelli's solution to everything at the EPO is exclusion and barriers



  21. The 'New' Microsoft is Still Acting Like a Dangerous Cult in an Effort to Hijack and/or Undermine All Free/Open Source Software

    In an effort to combat any large deployment of non-Microsoft software, the company goes personal and attempts to overthrow even management that is not receptive to Microsoft's agenda



  22. PTAB Petitioned to Help Against Patent Troll InfoGation Corp., Which Goes After Linux/Android OEMs in China

    A new example of software patents against Free software, or trolls against companies that are distributing freedom-respecting software from a country where these patents are not even potent (they don't exist there)



  23. Links 20/2/2017: Linux 4.10, LineageOS Milestone

    Links for the day



  24. No, Doing Mathematical Operations on a Processor Does Not Make Algorithms Patent-Eligible

    Old and familiar tricks -- a method for tricking examiners into the idea that algorithms are actual machines -- are being peddled by Watchtroll again



  25. Paid-for UPC Proponent, IAM 'Magazine', Debunked on UPC Again

    The impact of the corrupted (by EPO money) media goes further than one might expect and even 'borrows' out-of-date news in order to promote the UPC



  26. Lack of Justice in and Around the EPO Drawing Scrutiny

    The status of the EPO as an entity above the law (in Germany, the Netherlands, Switzerland and so on) is becoming the subject of press reports and staff is leaving in large numbers



  27. Links 19/2/2017: GParted 0.28.1, LibreOffice Donations Record

    Links for the day



  28. The EPO is Becoming an Embarrassment to Europe and a Growing Threat to the European Union

    The increasingly pathetic moves by Battistelli and the ever-declining image/status of the EPO (only 0% of polled stakeholders approve Battistelli's management) is causing damage to the reputation of the European Union, even if the EPO is not a European Union organ but an international one



  29. Patent Misconceptions Promoted by the Patent Meta-Industry

    Cherry-picking one's way into the perception of patent eligibility for software and the misguided belief that without patents there will be no innovation



  30. As the United States Shuts Its Door on Low-Quality Patents the Patent Trolls Move to Asia

    Disintegration of Intellectual Ventures (further shrinkage after losing software patents at CAFC), China's massive patent bubble, and Singapore's implicit invitation/facilitation of patent trolls (bubble economy)


CoPilotCo

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

CoPilotCo

Recent Posts